J.S. Sharma vs C.B.I.
2010 Latest Caselaw 3787 Del

*        IN THE HIGH COURT OF DELHI AT NEW DELHI

+        W.P.(CRL) 1188/2010

         JS SHARMA                                 ..... Petitioner
                            Through          Mr. S.P. Mehta, Adv.

                       versus

         CBI                                     ..... Respondent
                            Through          Mr. Vikas Pahwa, Standing
                                             Counsel for CBI with Mr. Tarun
                                             Verma, Adv.
         CORAM:
         HON'BLE MR. JUSTICE SANJIV KHANNA

                                ORDER

% 13.08.2010

On 31st March, 1973, Rang Mahal CGHS Ltd. was registered with

the Registrar of the Cooperative Societies for allotment of land. The

registered office of the said society was located at 81 Sunder Nagar,

Delhi.

2. In 1977, the society was allotted one acre of plot at Pitampura,

Delhi and after taking possession, 50 flats were constructed and were

allotted to the 50 members.

3. On 29th December, 2003, an application was filed by one Mr.

Deepak Kumar on behalf of Rang Mahal CGHS Ltd. requesting for

W.P.(Crl.) 1188/2010 Page 1 approval of final list of 120 members for allotment of land. This letter

was written on the assumption that the land was never allotted to this

society. It was mentioned in the letter dated 29th December, 2003 that

in addition to the 50 original members, 70 new members had been

added from time to time. As per the charge sheet, these 120 members

were fake and do not exist. Registered office address of the said society

was shown to have been shifted from 81, Sunder Nagar, New Delhi to

147G, Pkt. A-2, Mayur Vihar, Phase-III, New Delhi on the basis of a

forged resolution of the management committee dated 20th August,

1995. The allegation in the charge sheet is that this was done

deliberately to vest jurisdiction of the case under the AR (East). The

allegation in the charge sheet is that parallel/fictitious society by the

name of Rang Mahal CGHS Ltd. was created and registered for allotment

of land.

4. The allegation against the petitioner herein is that he was working

as AR (Audit) in the office of the Registrar of Cooperative Societies. He

had sent a letter dated 30th December, 2003, immediately one day after

receiving the letter dated 29th December, 2003, asking for the status of

the members of the society to the AR (East) in order to help out and

W.P.(Crl.) 1188/2010 Page 2 in furtherance of the conspiracy to ensure allotment of land to the

parallel/fictitious society. The allegation is that papers from 1973 till

2004 were removed and were made missing from the relevant file. Thus

the allotment of land in Pitampura could not be revealed and was

concealed. As per the truncated and shaved records available, no audit

of the society was conducted from 1973 till 2004 by the office of the

Registrar of Cooperative Societies.

5. In the charge sheet it is alleged that the accused Mr. Rakesh

Kumar Hasija had written a note dated 13th January, 2004 stating inter

alia that as per the records available, audit of the society was pending

since its registration in 1973 and no list had been sent to the DDA for

allotment of land till that date and no liquidation order was available in

the file and the society was non-functional. This note dated 13th January,

2004 was put up with the aforesaid observations and with a suggestion

to inform this position to AR (Audit) i.e. the petitioner herein and to also

appoint accused Mr. Faiz Mohd. as an inspector to conduct an

inspection of the society. This note was approved. The accused, Mr. Faiz

Mohd. submitted a report dated 3rd February, 2004, stating that he had

visited the office of the society and found the membership register

W.P.(Crl.) 1188/2010 Page 3 complete. He had stated that the last elections were held on 28th

December, 2003 and records of the society were in safe custody of

Deepak Kumar. The file was subsequently processed and proposal for

allotment of land was approved on the basis of the list of 120 members.

6. Learned Additional Sessions Judge while examining the allegations

in the order dated 31st March, 2010 directing framing of charge, has

specifically noticed that as per the official records, none of the accused

including the petitioner herein had asked about the missing note sheets

from 1973 till 2004. Learned Additional Sessions Judge had noticed that

immediately after letter dated 29th March, 2004 was received for change

of name of the society, the same was processed at a lightning speed and

the name of the society was changed to Silver View Apartments CGHS

Ltd. Thus it is apparent that every attempt was made to ensure

allotment to this parallel/fictitious society.

7. The allegation in the charge sheet is that the officials of the

Registrar of Cooperative Societies had entered into a conspiracy and

were involved in processing of the case for allotment of the

unparallel/fictitious society and approval for allotment of land to 120

fictitious members. It is alleged that this was deliberately and malafidely

W.P.(Crl.) 1188/2010 Page 4 done. The note sheets and papers were removed and the entire note

sheet went missing from 1973 till 2003. There was nexus between the

officials of the Registrar of Cooperative Societies and the private

persons, who had moved the application for setting up of

parallel/fictitious society. As far as the petitioner is concerned, he is the

first person, who had received the letter dated 29th December, 2003

from Deepak Kumar and had processed the same on the very next day.

He had also received the audit report as the AR (Audit) and had counter

signed the same.

8. Learned counsel for the petitioner has submitted that the

petitioner was merely acting as a dak clerk and was not responsible for

any verification. It is submitted that the petitioner is not a part of the

conspiracy. At this stage of framing of charge, it is not possible to accept

the said contention. This is a question of evidence and trial. Admittedly,

the check list for submission of audit report was counter signed by the

petitioner. It is pointed out by the learned counsel for the CBI that audit

as per the Rules can only be done for a maximum period of three years.

In the present case notes for 30 years went missing. The accused

including the petitioner processed the case as if no audit was carried out

W.P.(Crl.) 1188/2010 Page 5 for 30 years. The Supreme Court in Mir Nagvi Askari v. CBI,(2009)15 SCC

643 has observed as under:

62. The courts, however, while drawing an inference from the materials brought on record to arrive at a finding as to whether the charges of the criminal conspiracy have been proved or not, must always bear in mind that a conspiracy is hatched in secrecy and it is difficult, if not impossible, to obtain direct evidence to establish the same. The manner and circumstances in which the offences have been committed and the accused persons took part are relevant. For the said purpose, it is necessary to prove that the propounders had expressly agreed to it or caused it to be done, and it may also be proved by adduction of circumstantial evidence and/or by necessary implication. (See Mohd. Usman Mohammad Hussain Maniyar v. State of Maharashtra.(1981)2 SCC 443)

63. The following passage from Russell on Crimes (12th Edn., Vol. 1) cited by Jagannatha Shetty, J. in Kehar Singh v. State (Delhi Admn.(1988)3 SCC 609 at

731) brings out the legal position succinctly:

"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se, enough".

Further it was noted in Kehar Singh (supra) that to establish the offence of criminal conspiracy "[i]t is not required that a single agreement should be entered into by all the conspirators at one time. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in a general conspiracy though he may not know all its secrets or the means by which the common purpose is to be accomplished".

64. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself.

W.P.(Crl.) 1188/2010 Page 6

65. This Court in State of Maharashtra v. Som Nath Thapa [(1996) 4 SCC 659] opined that it is necessary for the prosecution to establish that a particular unlawful use was intended, so long as the goods or services in question could not be put to any lawful use, stating:

"24. The aforesaid decisions, weighty as they are, lead us to conclude that to establish a charge of conspiracy knowledge about indulgence in either an illegal act or a legal act by illegal means is necessary. In some cases, intent of unlawful use being made of the goods or services in question may be inferred from the knowledge itself. This apart, the prosecution has not to establish that a particular unlawful use was intended, so long as the goods or service in question could not be put to any lawful use. Finally, when the ultimate offence consists of a chain of actions, it would not be necessary for the prosecution to establish, to bring home the charge of conspiracy, that each of the conspirators had the knowledge of what the collaborator would do, so long as it is known that the collaborator would put the goods or service to an unlawful use."

[See also K.R. Purushothaman v. State of Kerala.(2005) 12 SCC 631]

66. Since we have dealt with the law with respect to criminal conspiracy in detail in R. Venkatakrishnan v. CBI we need not deal with it hereat once again. We may however notice that this Court most recently in Mohd. Amin v. CBI 2008 (14) SCALE 240 after taking recourse to law governing the field noted thus:

"74. The principles which can be deduced from the abovenoted judgments are that for proving a charge of conspiracy, it is not necessary that all the conspirators know each and every detail of the conspiracy so long as they are co-participators in the main object of conspiracy. It is also not necessary that all the conspirators should participate from the inception of conspiracy to its end. If there is unity of object or purpose, all participating at different stages of the crime will be guilty of conspiracy."

9. The essence of offence of the conspiracy is the fact of

combination by agreement. The agreement may be express or implied,

or in part express and in part implied. The conspiracy arises and the W.P.(Crl.) 1188/2010 Page 7 offence is committed as soon as the agreement is made; and the offence

continued to be committed so long as the combination persists, that is

until the conspiratorial agreement is terminated by completion of its

performance or by abandonment or frustration or however it may be.

The petitioner admittedly was holding the post of AR (Audit) and in view

of the allegations made, at this stage, it cannot be said that he was not

the member of the conspiracy and should be discharged.

10. In view of the aforesaid, I do not find any merit in the present writ

petition and the same is dismissed.

SANJIV KHANNA, J.

       AUGUST 13, 2010
       NA




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